U.S. v. Klopf
| Citation | 423 F.3d 1228 |
| Decision Date | 07 September 2005 |
| Docket Number | No. 04-10663 Non-Argument Calendar.,04-10663 Non-Argument Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael KLOPF, a.k.a. Michael James, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael Klopf, Rochester, MN, pro se.
Ryan K. Stumphauzer, Anne R. Schultz, Asst. U.S. Atty., Lisa T. Rubio, Miami, FL, for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
Michael Klopf, proceeding pro se, appeals his convictions and sentence for identity theft involving fraudulent driver's licenses, in violation of 18 U.S.C. § 1028(a)(3) (2000), and credit cards, in violation of 18 U.S.C. § 1029(a)(2). We affirm Klopf's convictions for unlawful use of identification documents and clarify the intent element necessary for proving a violation of § 1028(a)(3) as well as the effect on interstate or foreign commerce required for conviction under both statutes. Because Klopf's sentence for conviction under § 1028(a)(3) exceeds the statutory maximum, we vacate his sentence in its entirety and remand for resentencing.
Klopf was indicted for violating 18 U.S.C. § 1028(a)(3), possessing with intent to use unlawfully five or more fraudulent identification documents, ("Count I"), and 18 U.S.C. § 1029(a)(2), using unauthorized access devices with the intent to defraud, ("Count II"). The fraudulent identification documents consisted of approximately sixteen Florida driver's licenses bearing Klopf's picture alongside identifying information for several other individuals, while the access devices were credit cards in the names of individuals identified as A.G., M.E.H., R.J.A., and G.S.Z. These individuals were later identified as Allen Gould, Martin Hanaka, Robert J. Adamson, and Gary Zack, respectively.
At trial,1 Barry Golden, of the United States Marshal's Service, testified that, at the time when Klopf was arrested, he searched Klopf's vehicle and recovered (1) a credit card purportedly issued to Martin Hanaka of United Equity Leasing Service, (2) a printout from a public records database with identifying information for Hanaka, including address, Social Security number, birth date, and driver's license number, (3) a Visa credit card issued by Bank One to Gary Zack of Integrated Data Concepts, (4) a printout of identifying information for Zack, (5) a MasterCard credit card issued by Advanta Bank to Robert J. Adamson of United Equity Leasing Service, and (6) a printout of identifying information for Adamson. Golden further testified that, at the time of his arrest, Klopf was living in an apartment that he had rented under the name of Garrett Bender. During a search of Klopf's apartment, Golden observed a number of plastic storage containers. In these containers were folders, which held identifying information and various documents pertaining to several individuals, including Bender, Gould, Hanaka, Zack, Joseph Rebak, Scott Woolley, Steven Sponder, Michael Becker, Michael Wertheimer, and Michael Hoover. Golden also testified that he recovered a package, addressed to Robert J. Adamson, that was delivered to a Storage USA facility, where Klopf had rented storage and office space under the name of "Garrett." Additionally, the government introduced into evidence Klopf's Storage USA application, which showed that he had rented the facility under the name of Bender, using Bender's driver's license number.2
Zack, president of Engineer Glass Systems, testified that he did not know Klopf and never had allowed Klopf to use his identity. R5 at 194. Zack testified that he was not affiliated with a company named Integrated Data Concepts and did not apply for the Bank One credit card that was found in Klopf's possession. When shown a $4,500 check that was purportedly written by him, he testified that the signature on the check was not his. Id. at 198. Hanaka, chairman of the board of Sports Authority, likewise testified that he never had allowed Klopf to use his identity to apply for credit cards. Id. at 201. He testified that he was not associated with United Equity and Leasing Service and never had applied for the Capital One credit card that was discovered in Klopf's possession.
Leo Johnson testified that he had made several fraudulent Florida driver's licenses at Klopf's request. Id. at 214. Johnson testified that, although the fraudulent driver's licenses were not perfect replicas of actual Florida licenses, they were passable to an untrained person. Johnson stated that these fraudulent driver's licenses exhibited Klopf's picture and identifying information for other individuals, which was obtained from a public records database. Johnson testified that the licenses contained the actual Florida driver's license numbers for the identified individuals. Johnson also provided Klopf with fraudulent supporting documents, including Social Security cards, voter registration cards, utility bills, and American Express credit cards. The purpose of the supporting documentation was to "add[] value and weight" to the fraudulent driver's licenses. Id. at 230. Johnson testified that Klopf purchased approximately thirty sets of documentation and requested the supporting documents in order to obtain a "full wallet" of identifying documents for the same individual. Id. at 243.
Kelly Carrick, of the Florida Highway Patrol Bureau of Investigation's Driver's License Fraud Task Force, testified as an expert in the detection of fraudulent Florida driver's licenses. Trooper Carrick testified that the driver's licenses found in Klopf's apartment contained identifying information for Woolley, Bender, Rebak, Hoover, Becker, David Ruttenberg, Steven Sponder, and Brad McBride. Id. at 254-63. When she checked the information from the licenses against the information contained in the Florida Highway Patrol's database, she discovered that the pictures and certain information did not match, and, therefore, concluded that the licenses were fraudulent.
On cross-examination, Trooper Carrick testified that (1) none of the fraudulent driver's licenses contained the holograms that appear on valid Florida driver's licenses; (2) the magnetic stripes were not encoded with the appropriate identifying information; and (3) each contained several other defects that indicated that they were not valid licenses. Trooper Carrick further testified that the licenses were poor replicas and that she had "seen a lot better." Id. at 274. She testified, however, that an untrained officer might not recognize the driver's licenses as fraudulent, especially considering the fact that the hologram on a valid Florida license potentially can erode. On redirect, Trooper Carrick testified that the average lay person would believe that the fraudulent driver's licenses were valid Florida driver's licenses.
Clayton Wariner, of Advanta Bank Corporation, testified that (1) the credit card bearing Adamson's name was a valid card issued by Advanta; (2) the Adamson account had a credit limit of $12,500, and $10,733.74, less finance charges, had been charged to the account; and (3) the Adamson account was closed and written off as
a fraud loss. Id. at 286-94. Wariner additionally testified that a credit card bearing Gould's name was a valid card issued by Advanta. He stated that Advanta incurred a total loss of $14,431.25 as a result of charges made on the Gould account. Id. at 300. He testified that Advanta's account statements are processed in, and mailed from, Nebraska. On cross-examination, Wariner testified that the Adamson and Gould accounts were not closed until Advanta was contacted by United States Marshals, who informed them that the accounts had been implicated in a fraud investigation. Id. at 306-08. Wariner testified that the Adamson account was delinquent at that time, but that the Gould account was not.
Leslie Godden, of Bank One, testified that approximately $9,161.76 in charges were made using the credit card issued in Zack's name. Id. at 325. On cross-examination, Godden testified that the Zack account was closed in March 2003 because it was deemed to be fraudulent following notification by United States Marshals. Gould testified that he never had given Klopf permission to use his identifying information in order to obtain a credit card. Id. at 335. Elaine Kolar, a teller at the Wachovia bank located near Klopf's apartment, testified that three ATM withdrawals were made at her bank using the Gould credit card.
William Schulz, of the United States Secret Service, testified that several of the credit cards found in Klopf's possession were used on numerous occasions at Mark's Chop House in Jupiter, Florida. Id. at 361-62. Schulz testified that he visited Mark's Chop House and spoke with its owner, Mark Bendeck. Subsequently, Bendeck testified that Schulz showed him a series of photographs and asked if he recognized any of the individuals. Bedeck stated that he recognized one of the individuals pictured as a person, whom he knew as Allen, then later as Gary, who had visited the restaurant eight to twelve times. R6 at 387. Bendeck testified that Mark's Chop House is located two to three miles from Klopf's apartment.
At the close of the government's case-in-chief, Klopf moved for a judgment of acquittal and argued that, (1) with regard to Count I, the government failed to prove that he intended to use the fraudulent identification documents for an unlawful purpose; and, (2) with regard to Count II, the government failed to prove that he used unauthorized access devices with the intent to defraud. The district judge denied his motion. The only evidence presented by Klopf in his defense was a stipulation that the Hanaka credit card account was open as of February 14, 2003, the date of Klopf's arrest, with a payment...
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